At first blush, the news stories about West Virginia v. the Environmental Protection Agency are all about how the Supreme Court’s decision will hurt President Joe Biden’s chances of adhering to climate treaties the U.S. has signed. Yes, the decision will surely do that.
But it does much, much more. It is as revolutionary in its way as the Dobbs decision that overturned Roe v. Wade.
The case brought by West Virginia against the EPA was that the executive branch had overstepped its bounds, arrogating to itself the right to legislate through its use of regulation. In this particular case, the executive agency in question, the EPA, was mandating the shutdown of coal fire power plants. The Supreme Court ruled the EPA was wrong to attempt this.
The question for the court was not whether shutting down coal plants was good or bad for the country. The question was whether the EPA had the right to move forward with regulatory mandates on such “a major question” without express congressional approval. The answer from the court was a resounding no.
The court reasoned: “Agencies have only those powers given to them by Congress, and ‘enabling legislation’ is generally not an ‘open book to which the agency (may) add pages and change the plot line.’ We presume that ‘Congress intends to make major policy decisions itself, not leave those decisions to agencies.’ Thus, in certain extraordinary cases, both separation of powers principles and a practical understanding of legislative intent make us ‘reluctant to read into ambiguous statutory text’ the delegation claimed to be lurking there. To convince us otherwise, something more than a merely plausible textual basis for the agency action is necessary. The agency instead must point to ‘clear congressional authorization’ for the power it claims.”
This is a fascinating move by the court, and one that comes at a time when congressional deadlock makes it difficult to pass any important legislation at all. But the court said that is no excuse:
“When Congress seems slow to solve problems, it may be only natural that those in the Executive Branch might seek to take matters into their own hands. But the Constitution does not authorize agencies to use pen-and-phone regulations as substitutes for laws passed by the people’s representatives. In our Republic, ‘(i)t is the peculiar province of the legislature to prescribe general rules for the government of society’.”
In a paragraph that will no doubt become famous, Justice Neil Gorsuch, in his concurring opinion, states:
“By effectively requiring a broad consensus to pass legislation, the Constitution sought to ensure that any new laws would enjoy wide social acceptance, profit from input by an array of different perspectives during their consideration, and thanks to all this prove stable over time.”
He continued: “Permitting Congress to divest its legislative power to the Executive Branch would dash (this) whole scheme. Legislation would risk becoming nothing more than the will of the current President, or, worse yet, the will of unelected officials barely responsive to him. In a world like that, agencies could churn out new laws more or less at whim.”
Amen to that, and it certainly seems this scenario has been the case during both the Trump and Biden administrations. No matter which side of the political spectrum you are on, creating an imperial presidency through executive branch overreach is not in your favor.
This very momentous decision will now catalyze a slew of lawsuits aiming to reach the Supreme Court, in which particular regulations will be challenged for being about “major questions” that must be decided by Congress, and not by executive agencies.
It’s easy to imagine what some of those lawsuits will concern. I predict one will target the Department of Agriculture’s new regulation denying federal funding for school lunches to schools that preserve single-sex sports and restrooms. The attorneys general of 26 states have already demanded that memorandum’s retraction, and the new West Virginia ruling offers real encouragement such a case would prevail in the nation’s highest court. The preservation of single-sex spaces and sports competitions is clearly a “major question” requiring “wide social acceptance” before a change to the status quo can be made. And that means, because of West Virginia v. EPA, that Congress would have to legislate on the matter first.
This lawsuit will probably also draw in the Department of Education and the Equal Employment Opportunity Commission as well, for similar reasons.
On the one hand, the decision is good news: the people’s representatives are in Congress, not the executive branch, and the latter cannot and should not arrogate to itself the power of the former as it has increasingly done over time. On the other hand, in a time of extreme polarization among the people’s representatives, decisions by Congress on the “major questions” facing the country may simply not be possible. Again, as with the Dobbs decision, this then would punt all “major questions” to the states. Increasingly, though, this means the United States seems anything but united, with an incipient crazy patchwork of state laws that flatly contradict one another and even attempt to coerce each other into submission.
A house divided against itself cannot stand. Will an increasingly strong federalism enjoined by the Supreme Court lead us to a new “Critical Period,” as was seen in the 1780s with numerous crises caused by the federalism of the confederation period? Or will Congress rise as a phoenix and undertake the responsibilities with which it is tasked? Either way, historians will look back on West Virginia v. EPA as a key turning point in the American saga.
Valerie M. Hudson is a university distinguished professor at The Bush School of Government and Public Service at Texas A&M University and a Deseret News contributor. Her views are her own.